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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

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- Aldous Huxley, "Time Must Have a Stop"

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Saturday, 13 May 2006
The Social Contract: Will The Leviathan Survive All This?
Topic: Making Use of History

The Social Contract: Will The Leviathan Survive All This?

Elsewhere, in Tautology and Royalty, in comparing this administration's view of the powers of the executive branch, particularly the view that the president has certain plenary powers that permit him to disregard laws the legislative branch enacts and rulings on those laws from the judiciary at any level, a lot of British history was condensed into a paragraph or two on all that really didn't work out very well for the folks across the pond. Charles I actually lost his head over those kind of claims. And mixed up in that all was a brief mention of Thomas Hobbes and his startling book "The Leviathan" - people are nasty and the world awful and we really need a strong government as life is "nasty, mean, brutish and short."

As political theory goes, that's one end of the spectrum, superceding the ideas floating around before the glum Hobbes penned his famous treatise - all the stuff about how without government we'd all be fine, as people are naturally good (see "Candide" and the like). The middle ground may be what John Locke was pushing in 1798 or so, that we're neither naturally good nor naturally bad, just "blank slates" - the tabula rasa business.

Which of these basic views you take really does, of course, determine what you think the "social contract" should be. That's not just late night dorm room bull session stuff. Which you think is true has to do with everyday life, with what you expect from your government, from the local cop with his radar gun catching speeders all the way up to the federal government, with FEMA and the people at the airport telling you to take off your shoes and empty your pockets, to the folks who run up massive debt and start wars and say we should trust them. You may not actually vote, few do, but you live in the contract you imagine, paying your taxes and perhaps sending someone in the family off to Iraq or Afghanistan for a few tours, hoping he or she makes it back alive and whole.

The recent business with domestic spying may make you think about such things. First there was the executive order from the president, renewed again and again, ordering the NSA to monitor the communications of particular American citizens, in America, and to disregard the law requiring a warrant to do such thing, and the special FISA court set up to issue such warrants. The president and his attorneys argue that this is legal, as everyone had previously misunderstood the constitution and the roles of the three branches, and assume that the public will be fine with it, as life is "nasty, mean, brutish and short" - and there are lots of bad guys out to kill us. People buy the Hobbes view, or so they assume, or hope. Then USA Today reveals how the targets for that secret warrantless spying were selected - a previously secret NSA database of the call records of every telephone call in America placed since late 2001, except for the calls made by the customers of Quest, the telecommunications company that refused to participate. And to be clear, the records were sold to the NSA, for profit, and not provided as a public service or any such thing. Add that both programs were run for six years by General Michael Hayden, at the top of the NSA. The head of the CIA was abruptly shown the door and the president nominated Hayden to move over there and continue.

What do you make of this?

Some are more than wary. Others, maybe most Americans , as Bill Montgomery points out here, in a long discussion of Thomas Hobbes and "Leviathan," are fine with this, as we seem to have an accepted social contract "that owes a lot to Thomas Hobbes" -
In exchange for the economic security that corporations provide - a degree of shelter from an anarchic global market - we willingly, if grudgingly (at least in my case) give up a hefty share of our freedom and an even bigger chunk of our privacy. Having made that bargain, we're not really in a good position to object if the company proves more intrusive than we expected, for as Hobbes says, "he that complaineth of injury by his sovereign complaineth of that which he is the author and therefore ought not to accuse any man but himself."

This also seems to be the intuitive position of many Americans when it comes to the new cyber-surveillance state. By giving up their privacy and - potentially - their civil liberties in exchange for a degree of protection (real or imaginary) from terrorism, they've sacrificed items that apparently are of only marginal value to them for something more important - their belief that the organization is looking out for them.

We can argue all we want that the deal is a sham, that any sense of security is an illusion, and that having gobbled up their privacy and some of their liberty, Leviathan will only come looking for more, because that's all it knows how to do. But an awfully large number of our fellow citizens have already decided, or have been conditioned to believe, that it's better to be subjects and let others make the hard decisions for them. After all, the organization must have its reasons.

Of course, this potentially sets the scene for the next loop in the downward spiral towards a full-fledged police state. If and when the next terrorist attack comes, the natural response of the national security bureaucracy (and its legal camp followers) will be to insist the tragedy never would have happened if it had been given access to all the data it wanted, all the money it needed, and all the investigative powers it demanded. It'll be the fighting-with-one-hand-tied-behind-our-back argument, re-imported from Iraq. And who's going to say no when another major American landmark is a smoldering ruin?

Leviathan, in other words, is almost free of any restraint, save the arbitrary limits - such as they may be - set by the Cheney administration or, perhaps more importantly, by custom and habit.
The creature doesn't know all the things it can do, but only because it hasn't tried to do them yet. But it's starting to figure this out, and it's going to take more than an election and a few corruption probes to make it back down. Having entrusted their security and their liberties to the beast, Leviathan's subjects will be lucky not to wind up like Jonah, lodged in its belly.
Montgomery fears the whale, which is more than the administration and any one or two corporations - it's a self-actualizing interrelated system of that and more. And most people are "instinctively" fine with it.

The first polling after the USA Today story seemed to bear that out. Thursday night the Washington Post conducted a flash poll (small sample and wide margin of error) and came up with this - "63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism."

But Frank Luntz, the man who polls everything political, and was let go by NBC after it became more than obvious that he stacked things toward the administration's view, and the was shown to make most of his money by being paid by the Republican Party, was saying things like this - "There is a very fine line between national security and personal oppression. The public is prepared to accept a degree of intelligence intervention but this may have crossed the line. I think a majority of Americans will be opposed to this."

We're not all Hobbes fans?

Then Newsweek did a careful poll - that had a meaningful sample size with a more acceptable margin of error. The results shifted -
A majority of Americans polled, 53 percent, believe that reports that the NSA has been secretly collecting the phone records of U.S. citizens since the 9/11 terrorist attacks to create a database of calls goes too far in invading people's privacy, according to the new Newsweek Poll, while 41 percent feel it is a necessary tool to combat terrorism. In light of this news and other actions by the Bush-Cheney administration, 57 percent of Americans say they have gone too far in expanding presidential power, while only 38 percent say they have not.

Only 35 percent of Americans approve of the way the president is handling his job-down one percentage point since the last Newsweek Poll. Seventy-one percent of Americans are dissatisfied with the way things are going in the United States at this time, an all time high in the Newsweek Poll, while only 23 percent are satisfied. When asked how history will view George W. Bush, an overwhelming 50 percent of Americans polled said he will be viewed as a below average president. Since his re-election in 2004, 47 percent feel his performance has stayed the same, while 48 percent feel it has gotten worse.
What a difference a day makes, as does doubling the sample size to the statistical minimum for reasonable accuracy (1007 respondents this time) - and fifty-three percent think this "invades privacy" way too much, and fifty-seven percent think the White House has gone too far in expanding presidential power.

Montgomery needn't worry. We're not all Hobbes fans. Locke is cool. Voltaire and Rousseau will do.

As a subset of this, Jane Hamsher here details the views of Richard Morin, the guy who set up the Post flash poll. He doesn't ask questions that "make him mad" and may be a pro-Republican shill, or his last name should be spelled correctly.

But Montgomery, in another item, suggests he's not concerned with the polls, as he says this -
The whole point of having civil liberties is that they are not supposed to be subject to a majority veto. Hobbes may not have believed in natural rights, but our founders did. And their opponents, the anti-Federalists, were even more zealous about restraining the powers of the federal superstate, which is why they forced the Federalists to write the Bill of Rights directly into the Constitution.

It defeats the purpose of having a 4th Amendment if its validity is entirely dependent on breaking 50% in the latest poll. It would be nice to have "the people" on our side in this debate, and obviously a lot of them are, even if Doherty's plurality still prefers Leviathan's crushing embrace. But some things are wrong just because they're wrong - not because a temporary majority (or even a permanent one) thinks they're wrong.

... We can't do anything about how a corrupt, oligarchic system works (or rather, doesn't work) but we can at least stop accepting the other side's terms for the debate. What the government is doing is illegal and un-American, and that would still be true if the polls showed 99% support - in fact, it would be even more true.
Still, it is nice to know that what people see as the "social contract" - how they behave and how they expect others to behave, and what they expect of the government they fund - is not all that Hobbes-like, or not entirely so.

What will people make of things like this coming out after the news cycle closed down for the weekend -
In the weeks after the Sept. 11 attacks, Vice President Dick Cheney and his top legal adviser argued that the National Security Agency should intercept purely domestic telephone calls and e-mail messages without warrants in the hunt for terrorists, according to two senior intelligence officials.

But N.S.A. lawyers, trained in the agency's strict rules against domestic spying and reluctant to approve any eavesdropping without warrants, insisted that it should be limited to communications into and out of the country, said the officials, who were granted anonymity to discuss the debate inside the Bush administration late in 2001.
And there's this little bit, referencing Richard Addington, now Cheney's chief-of-staff as his former chief-of-staff is under felony indictment and had to resign. One of the anonymous sources explains the talk going on at the time -
If people suspected of links to Al Qaeda made calls inside the United States, the vice president and Mr. Addington thought eavesdropping without warrants "could be done and should be done," one of them said. He added: "That's not what the N.S.A. lawyers think."
Hobbes lives, but others know the law and suggest it matters. They lost, but at least someone spoke up.

And as for speaking up, see this - New Jersey lawyers Bruce Afran and Carl Mayer filed suit Friday in Manhattan federal court against Verizon for contracting with the Government to provide it with customer phone records. They are "contemplating additional suits" against AT&T and Bell South. And it's nasty -
Orin Kerr, a former federal prosecutor and assistant professor at George Washington University, said his reading of the relevant statutes put the phone companies at risk for at least $1,000 per person whose records they disclosed without a court order.

"This is not a happy day for the general counsels" of the phone companies, he said. "If you have a class action involving 10 million Americans, that's 10 million times $1,000 - that's 10 billion."
Ouch. For the legal details, see this discussion of the relevant statutes and how this could be real trouble. But that's for lawyers. Short version? The leviathan has been harpooned. Shift from Hobbes to Melville - will the New Jersey "Ahabs" be pulled under by the Great White Whale that just cannot be conquered? (No, don't think of Cheney in a Speedo.)

But the other Great White Whale may have been harpooned and actually go under.

Friday this - "Within the last week, Karl Rove told President Bush and Chief of Staff Joshua Bolten, as well as a few other high level administration officials, that he will be indicted in the CIA leak case and will immediately resign his White House job."

That's from a real journalist, Jason Leopold, who has actual sources inside the White House. There are lots of details. The planning for a post-Rove administration is underway, as is a spin strategy to assert that the removal of Bush's Brain really makes no difference at all.

Saturday the same reporter has this, Patrick Fitzgerald met with Karl Rove's lawyers Friday -
During the course of that meeting, Fitzgerald served attorneys for former Deputy White House Chief of Staff Karl Rove with an indictment charging the embattled White House official with perjury and lying to investigators related to his role in the CIA leak case, and instructed one of the attorneys to tell Rove that he has 24 hours to get his affairs in order, high level sources with direct knowledge of the meeting said Saturday morning.

... It was still unknown Saturday whether Fitzgerald charged Rove with a more serious obstruction of justice charge. Sources close to the case said Friday that it appeared very likely that an obstruction charge against Rove would be included with charges of perjury and lying to investigators.

An announcement by Fitzgerald is expected to come this week, sources close to the case said. However, the day and time is unknown.
There's a discussion of this by a prominent defense attorney here - given that the meeting lasted fifteen hours it must have been complex plea bargaining that probably failed. He will go under, or so it seems. (No, don't think of Karl Rove in a Speedo.)

As for Vice President Cheney, late Friday Fitzgerald filed a new pleading in the case. That's here with an analyses here, and this exhibit, and that's a copy of Joseph Wilson's now famous July 6, 2003 New York Times op-ed item with Cheney's handwritten scribbled notes in the column.

This is trouble, as Michael Isikoff explains in the upcoming Newsweek here -
It is extremely rare, if not unprecedented, for Cheney's own notes to be made public. The notes -apparently obtained as a result of a grand jury subpoena - would appear to make Cheney an even more central witness than had been previously thought in the criminal probe.

... Fitzgerald first alleged that Cheney had questioned whether Wilson's trip was a "junket" in a court filing last month. In that filing, Fitzgerald also asserted that the vice president, acting with the approval of President Bush, had authorized Libby to disclose portions of the classified National Intelligence Estimate on Iraq to rebut some of Wilson's claims.

... Fitzgerald in his court filing indicated he plans to introduce a copy of Cheney's annotated version of the Wilson column to show the vice president's interest in the circumstances surrounding Wilson's trip was an important matter to Libby that week and explains many of his actions.
The prime mover, the real Great White, may be the central planner in punishing the man who embarrassed him, and maybe inadvertently, or purposefully, blowing the guy's wife's CIA cover, which outraged the CIA and blinded us about what Iran was up to with their nuclear program. That's interesting.

Will the leviathan survive all this?

Posted by Alan at 19:07 PDT | Post Comment | Permalink
Updated: Monday, 15 May 2006 08:17 PDT home

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